Intellectual Property,
Human Creativity And Reward

Libertarians are as diverse a group of individuals as one could wish to meet, but they all have an abhorrence of collectivism bordering on the paranoid. They all pretty much agree too that property rights are fundamental to human liberty, indeed to human survival, and they all more or less agree both that everything, from prisons to whales should be directly owned by somebody, and that everyone else should pay the owners for the right to use their property, be it to visit a rainforest, a ride on a train or a meal in a restaurant. The reasoning behind this is that everyone needs incentives to produce goods and services: maintain the environment, lock up criminals or whatever, and that these incentives are, or should be, primarily financial. Further, that if there were no or insufficient financial incentives, no one would undertake any work, and society would grind to a halt. This is undoubtedly true as far as most work and most jobs are concerned; who would wait on tables, dig ditches or undertake seven years medical training without any financial reward? But there is one area of human activity where the much despised (by Marxists) profit motive does not operate or even exist, or if it does, then it exists and operates in such a fashion as to have little relevance or meaning to the strictly temporal subject of economics. This is in the field of human creativity: the arts - music, literature, poetry... When free market thinking is applied to these fields, it doesn’t work. This statement needs some qualification.

It is true that when artists, (1) like artisans, traders and entrepreneurs, are permitted to sell their work on the open market, that art will blossom. In particular, if they are well rewarded financially the quality of certain artists’ work may increase because they are able to afford more expensive cameras or devote more time to researching their historical novels. (2) But it is manifestly not true that art stagnates when there is little or no financial reward attached to an art-form. Even when there is no promise of any material reward, artists keep churning out their work: there is never any shortage of paintings, photography, poetry, plays, novels, or innovation in a dozen related and unrelated fields. Indeed, it may be argued that in some respects the quality of art is drastically reduced by the free market, at least on a percentage basis, in that when there are spectacular rewards on offer, as well as dedicated artists a great number of hacks and otherwise totally untalented people are attracted to the field, thereby flooding it with third rate pap, which makes it difficult for the public to separate the wheat from the chaff - to find the good films, the good paintings, the good novels... (3)

The point though is that whether or not there is a material reward, whether or not there is any reasonable prospect of acquiring wealth, fame or something else through their work, artists will continue to churn it out, perhaps not in such great quantity, but their essential creative talents will not be in the least bit stifled by the futility of their efforts, because it is not, primarily, the promise of material reward which motivates them.

This may come as a shock to hard core Libertarians who take the unnecessarily cynical view that acquiring material wealth is the raison d’être of human existence, but it is nevertheless a demonstrable fact, as I will now show. Firstly though, let me mention a corollary of the proposition that creativity is its own reward.

If indeed this is so, then intellectual property should not be recognised as having any fiscal value. In other words, artists should not be paid, and there should be no such thing as copyright! Neither the promise of material gain nor the recognition that artists are entitled to receive payment in perpetuity for their definitive work should be made. This may come as another shock, an outrage even, but shortly I will attempt to justify this assertion. Let us though return to the first proposition, that artists are not motivated principally by the prospect of material gain. I will illustrate this by three examples:

a) the case of the indignant lyricist;
b) personal experience;
c) the shareware concept.

The Case Of The Indignant Lyricist

A couple of years ago, when I was listening to a radio talk show, one of the guests, a lyricist, stated that people who copied or otherwise used other people’s lyrics were contemptible beyond belief, that this was tantamount to stealing, and that as a lyric writer, he should be recognised as the creator of something special: intellectual property - which is just as sacred to lyric writers as is the temporal kind to Libertarians, and indeed to most other people. I couldn’t help thinking that this guy (whose name I don’t recall), was a total humbug for the following reasons.

A couple of years prior to listening to this drivel, I had penned a very short and (for him) most appropriate poem:

On Lyricists

Any **** can write lyrics.
And every **** does.

This less than complimentary comment was the result of having had several bad experiences with lyricists, one of whom thought he was the reincarnation of Shakespeare (and ignorant into the bargain), a second who was some sort of comedian, and a third who was mentally retarded. I should point out that I was also writing a fair amount of lyrics myself at that point, but that I also play (or played) a certain amount of guitar, and as well as being a sight reader of albeit limited ability, I also compose(d) music. For some bizarre reason I decided I wanted to work in partnership with other lyricists, and this was what I got.

The truth is that very many lyric writers are completely untalented, furthermore, lyric writing is something everyone (or almost everyone) does at some point in his/her life, and far from being some sort of special and always to be treasured intellectual property, most lyrics are instantly forgettable, and even if they weren’t, there are so many of them about that it is damn nigh impossible to give them away, so who on Earth would want to steal them?

If the reader doubts this, let him place an advertisement in any music paper inviting people to send him theirs for a fiver, or even a pound a verse. He will be deluged with them. Nowadays, when all talented bands and performers write their own material, no one is interested in either lyrics or people who write them. Those few who do succeed, do so either out of sheer luck or by drinking with the right people.

The reason for this is not far to seek. Whatever else human beings may be accused of, no one could ever claim that the species as a whole lacks creativity. It is one of Man’s most basic urges to create. Whether it be the written word: non-fiction, novels, poetry, lyrics; or music, fine art, pottery, we are absolutely deluged with it. And of all media, the written word is by far the most saturated. In 1989, 61,195 books were published in the UK alone. (4) The current edition of WILLINGS PRESS GUIDE lists some 13,000 titles. (5) Advertising copy, technical manuals, the guarantee on your new refrigerator...everywhere you look, there is writing. With all this demand for commercial and recreational copy, one would think that every talented writer would be immediately recognised and snapped up. Unfortunately, this is not the case. Every book publisher worthy of the name has a slush pile a foot deep, ditto magazine editors. The simple fact is that however great the demand, the supply is far, fargreater, and there is no good reason to believe that under a less market-oriented economy the situation would be otherwise. For even if all these writers hope to be discovered, make a million or achieve some form of recognition, these are not necessarily the main reasons they continue to write. It is difficult if not impossible to quantify, but probably most of them write simply because they want to write. Call it the muse, cacoethes scribendi, inspiration, desire, it whatever you want, but writers and artists will continue to “do their own thing” to varying degrees, whether or not they are paid, recognised, or indeed noticed. (6)

Personal Experience

My personal experience is that I began writing in earnest in about October ’83 at the somewhat advanced age of 27; I wrote poetry. For various reasons, I didn’t start attempting to market my work for about a year and a half, although I entered and won a poetry competition in the interim. When at last I did venture into the literary market place, I realised that there was no market for poetry. This realisation was both slow and painful. Again, for various reasons I didn’t write just poetry, but a novel (as yet unpublished), lyrics, music, songs, etc. Apart from poetry prizes (which were never thick on the ground), it was ages before I made any money at all out of writing. I can remember feeling ecstatic the first time I received proper payment for my efforts. After sending a sample of jokes to a man in Dublin, I received through the post, an Irish five pound note!

Eventually I did manage to scratch together some paid work, and for the past two years plus I have made a very precarious living out of it, but, apart from disillusion (a perennial problem), and other commitments, even if I had never made a single penny out of writing over the past eight years, I would probably still be writing now. The only difference is that I would have died an even more unhappy and discontented man.

Having made a bit of dosh out of writing, and having received a few commissions from various editors, my expectations began to rise, and though I still submit articles to magazines on spec’ and even without prospect of payment in the event of their publication, by and large I expect to be paid for what I write. I haven’t yet reached the stage where I can afford to turn down any commission; apart from that, I just love to see my name in print, and to kid myself that perhaps, in some very minor way, something I have written has or might one day alter the course of human history (for the better).

Though most of my friends consider me to be a bit of a weirdo, my aspirations and modus operandi are almost certainly no different from those of the vast majority of other writers in a similar position. I will concede that I am more persistent than most, sometimes to the point of aggravation, more determined, possibly more talented, and definitely more impetuous, but all writers and artists, once they achieve some fiscal success, reconsider their positions, and their aspirations rise.

Our indignant lyricist friend would have been quite a bit less indignant if he had not been taken up by a composer, publisher or whatever and had been left to scribble his doggerel in a cold garret. (7)

Intellectual Property And
The Software Industry

[Probably most people don’t regard computers as an art-form, except perhaps for desktop publishing, graphic design and similar elements. But in this paper I have included all writing and human creativity (within reason) as an art-form. The computer industry: hardware design and manufacture, software development, information technology...has been the boom industry of the eighties, nineties, and will be for the foreseeable future. The creative element involved in developing even the most mundane number crunching programs is not inconsiderable.] (8)

There are three main methods of distributing computer software:

a) commercially
b) public domain
c) shareware

Commercially, software distribution is much the same as any other product distribution: it can be purchased in shops and by mail order. There is also a thriving secondhand market, much as there is for cars, bric-a-brac, books, etc. The only difference is that, when the buyer purchases a new commercial software package, he is given a licensing agreement and registration card.

A typical licensing agreement reads something like this:

“This is a legal document between you, the end user, and us, Super Software Corporation. Read it first, and if you do not agree to all the terms herein, return the software package unopened to the outlet where you purchased it, and you will be given a full refund.

“When you purchase this software package, part of the sale price includes a licence fee which grants you, the licensee, a non-exclusive right to use this package on a single computer. (9)

“You own the physical media on which the software exists, but you do not own the software itself. The licensing agreement entitles you only to use the software. Unauthorised copying of the software is expressly forbidden and you may be held legally responsible for any copyright infringement. (10)

“All subsequent copies of the software belong to us, and are in any case illegal. You may not alter or merge the software in any way without our express permission. This licence will be terminated by us if you break the rules. If you sell the software, you must pass on the manual and all documentation with the original program disks. Any backups of the software in your possession must be destroyed. (11) This licence shall be governed and construed in accordance with your country of residence.” (12)

When a purchaser buys a new software package, he fills out a registration card and sends it to the software company. As a registered user of a particular package, the buyer may be entitled to further goodies, including on-line support and cheap upgrades. For example, the current writer purchased a desktop publishing package from a mail order outlet for around sixty pounds. This was an early version and had been sold off cheaply by a supplier as bankrupt or surplus stock. The latest version of the software, which is much more advanced, currently retails for around six hundred pounds. On contacting the company I was informed that an upgrade would cost me around two hundred and twenty-five pounds. So, by returning the original program disks with a cheque for the above amount, I could purchase the latest version for a substantial discount, (around three hundred pounds).

There is also such a thing as bespoke software; this is tailored by programmers to suit the needs of particular companies or individuals, and can be anything from a simple accounts package to something as complex as the software for the ten yearly census. Naturally, such packages are considerably more expensive than ordinary commercial software, but the purchaser may be entitled to unlimited on-line support and other services. That old adage you get what you pay for applies to the field of computers as much as any other.

There is an organisation called FAST (Federation Against Software Theft) which polices the computer industry - seizes pirate software, prosecutes pirates, etc. The software industry is an industry like any other; like all hi-tech industries it needs to develop and market a steady stream of new products. And, like all industries, it needs to make a profit. If a software house were to develop a new wordprocessor or database and permit it to be copied with impunity, it would sell only a handful of packages instead of perhaps a hundred thousand. Obviously this is no way to run a business. If it were to stay in business, the company would either have to develop a couple of hundred new products every week, or sell each product for fifty or sixty thousand pounds. Obviously, both scenarios are absurd.


But, like all markets under laissez faire, the software market is permanently saturated. Which means that, like other writers and artists, the majority of software authors find it difficult to make a living. Again, it is a question of being lucky or well connected. If they had to do what most novelists have to do, submit their synopses and manuscripts and pray their compositions will be chosen from a foot deep slush pile, they would get precisely nowhere. (13) However, there is a channel open to software authors by which they can market their work (and perhaps even make some money out of it): shareware.

What is shareware? If you write a novel but can’t find a publisher for it, it is possible to publish and distribute it yourself. This is a course of action which is prohibitively expensive for most people. (14) A short story or collection of essays faces the same problem, except the shorter the work, the less it is likely to cost. While if you write a poem, all you need do is photocopy it and pass it round the office. (15) While it is possible for a novelist to publish his book himself, unless he is extremely lucky he will almost certainly end up out of pocket. But for the software author, the shareware concept is a practical means of distributing his work, because the cost to him is negligible. (16)

Shareware is essentially public domain with a time limit. (17) (Shareware distributors are hyper-sensitive about this - they always insist that shareware is not the same as public domain). Once he has written a program, an author sends it to a shareware library or distributes it himself. Anyone may use the program for a thirty day evaluation period. It may also be copied and distributed, but not altered. (18)

The shareware concept began with two American authors: Andrew Fluegelman and Jim Button. Fluegelman, California-based author of the communications program PC-Talk, gave his program to users, but instead of selling it, simply requested a payment if they liked it and intended to use it. This was in 1981. Meanwhile, Jim Button from Washington State, author of Easy-File, a mailing label program, (19) was doing the same thing. The American computer scene must have been a small world in the early eighties because the two men soon got together and began marketing their products with a voluntary donation price of $25 each. Later, Bob Wallace, a former Microsoft employee, started his own company, Quicksoft, and added an innovation. He paid people a commission for everyone who registered his wordprocessing program, PC-Write. (20)

Propagandists for the shareware concept are quick to point out that shareware exists only because users are willing to register, and that this unique “try-before-you-buy” method of distribution has been developed specifically for the benefit of the end user. As usual, this is vested interest talking, as anyone who takes a skeptical look at the state of the software scene will quickly appreciate.

The American commercial software distributor Express Technology, which advertises regularly in the British monthly Computer Shopper, makes the following proud boast in its full page ad: “CHOOSE FROM 10,000 POPULAR TITLES”. (21)

Obviously my earlier reference to the saturated market was a gross understatement. Now let us put this into context. Imagine for a moment a computer fanatic who spends every waking moment at his keyboard; how many programs is he likely to use? Let’s be liberal and say that during the course of a typical working day he does the following: writing (wordprocessor), designs a flyer (DTP, clip art and graphics programs), does his accounts (spreadsheet), mails some letters (database and label maker programs), writes a couple of programs (two compilers and an assembler), checks for a virus (anti-virus toolkit), maintains his hard disk (utilities program), sends some E-mail (comms program), plays some music in his lunch break (midi), uses the computer to cast his horoscope and the I-Ching (two programs), plans his diet and writes a recipe (two programs), checks his diary, plans a project and draws up an agenda, (three programs), and, in the evening, he takes on the machine at chess and plays half a dozen video games, (seven different games programs). Then let us say for good measure that he uses Windows, two or three utilities and half a dozen other programs. That makes a grand total of thirty-eight programs used in an average working day by a dedicated user. In reality, even a dedicated user is not likely to use anything like as many. (22) But even using fifty different programs a day seven days a week, including trying out all the various word processors, spreadsheets etc, it would still take our hypothetical friend over six months to go through every program stocked by this one company. And that’s just the popular ones!

Yet software houses are developing and procuring new material at an exponential rate, and so far they have shown no sign of letting up. (23) Now, the real reason for the birth and development of the shareware concept becomes apparent: it is the only way very many software authors may ever get a piece of the action. For however many programs industry, business and the games playing public can swallow, there is such an enormous reservoir of talent that only a tiny percentage of this undoubted creative genius will ever be distributed, much less become commercially successful or acclaimed. (24)

As already mentioned, there are over 60,000 books published every year in the UK alone. (25) Add to this the plays, paintings, sculptures, records and other art-forms, and it will be quickly seen that, just as any one man or woman can only ever become acquainted with an ever-decreasing fraction of the sum total of human knowledge, so must art, whether pottery, poetry or computer software...become increasingly difficult to market, whether for material gain or for any other reason. (26)

A great deal of this material is in the public domain, but a great deal isn’t. Which means that the copyright industry, (which covers everything from books to music to software to patents to trademarks) must itself have a vast and constantly expanding archive.

All this tends to raise the question: do we need anymore books, poems, songs, operas or wordprocessors? The answer to this is both yes and no. If only from a purely technological point of view, innovation is desirable. Currently, the author is using a personal computer with a 30Mb hard disk, which is commonplace among people working in my field, yet I have been wanting to upgrade it for some time, and a mere 30Mbs is today considered inadequate by almost anyone working in the field of desktop publishing, especially with complex graphics programs. Yet a mere ten years ago, 30Mbs was considered futuristic. Who knows what developments the next ten years will bring to the field of personal computing: hardware and software? (27) Anyone who doesn’t equate this sort of development with progress has never considered the advantage of sending a fax over posting a letter, or of logging onto a database rather than manually searching through a set of index cards. (28)

But returning to the question: do we need anymore books, poems, songs, operas or wordprocessors? The short answer is an overwhelming “No!” though the public is as insatiable for new talent and innovation as are artists for producing it. But even if the public were to stop buying records, books and wordprocessors, artists would still record, write and develop them, albeit handicapped by severe financial (and time) restrictions.

The Profit Motive And
Alternative Rewards

A few years ago I attended a meeting of an extreme left wing group where, as usual, the comrades were extremely friendly, and two of them offered to buy me drinks. I explained to a couple of them that I had attended out of curiosity rather than commitment, and that I was more concerned with Green issues. (29) Both of them empathised and said: Yes, it’s very worthwhile, the Green Movement, but if only we could get rid of the profit motive. Obviously they were both a) trying to recruit another useful idiot; and b) obsessed with the spurious Marxist idea that the profit motive is the root of all evil. Nevertheless, as I think I have already demonstrated, the profit motive manifests in many different ways, some of them quite intangible. Clearly, for many artists the profit motive is synonymous with the pursuit of pleasure, satisfaction or quite simply the act of creating or performing. When measured in these terms, the profit motive has little or no relevance to economics, and it is meaningless to attempt to interpret all human industry in a purely economic light.

Paul McCartney may be a long way from the richest man in the world, but the fact that he is still making albums and performing many years after he could have hung up his guitar and rested on his laurels does seem to indicate that he is either a) extremely greedy; or b) motivated by a higher purpose. For once, let us take a less cynical view and assume it is the latter. Obviously writing and performing does not make him feel bad, in fact almost certainly he derives a great deal of satisfaction from “doing his own thing”. Therefore, the pursuit of creativity, excellence, etc, becomes its own reward.

Which is fine for Paul McCartney, but my earlier suggestion - that artists should not be paid, and that there should be no such thing as copyright would not go down at all well with the countless artists the world over who have to struggle for years to receive any acclaim or even to eke out an existence. To cite just one case history - the British heavy metal band Magnum were on the road for ten years before they “arrived” so to speak. And although they may now be classified as a minor supergroup (30) they are still a long way from a household name. Undoubtedly, they, and every other rock band, musician, novelist...would shrink in horror and perhaps express righteous indignation at the mere suggestion that they should be stripped of their copyrights, indeed so would I, but what I am suggesting is not that artists should never receive any reward, but that the reward they receive for their efforts should be expressed in some other way, not necessarily financial. Exactly what alternative there is or could be to hard cash, I have no idea, but that is not my problem. Undoubtedly, with a little lateral thinking, someone could come up with something both innovative and acceptable, perhaps the artist could decide for himself what he wanted, and some sort of committee could be appointed to decide whether or not he merited such a reward.

All of which does appear, on the surface at any rate, to unnecessarily complicate things, create even more paperwork, even more bureaucracy and attack the free market by taking the power to decide the merit of art and innovation out of the hands of the paying public and placing it in those of some arbitrary committee, but that is not the intention. Rather, being an artist myself, I would like to see more people rewarded for their efforts, including those who hack away for years or even decades and never make a bean.

Value For Money

All this is not to suggest that the public does not already get value for money, for while some books are expensive and some paintings are ludicrously priced, in many respects, the consumer has never had it so good. To take just two examples: the latest version of Microsoft’s programming language QuickBASIC Version 4.5 currently retails for a shade over fifty pounds. (31) For this paltry sum the end user gets the latest version of a program which allows him to perform complex equations, produce presentation graphics, play music and a thousand and one other things. He also gets a 400+ page manual and on-line help and documentation which, altogether, must have taken thousands of man-hours to develop. Not to mention telephone support and the back up of one of the world’s most prestigious software developers. This is by no means untypical.

A more prosaic example of value for money is the humble video. Most videos now retail for ten pounds or less, which, considering the work that goes into them, is phenomenal. If even ten pounds is too much, the prospective viewer can always purchase slightly older films secondhand, or after he has watched it, he can swap his latest purchase with a fellow film buff without breaching copyright laws.

All of which tends to suggest that consumers are not only spoilt for choice but that they are paying too little rather than too much for their art, but this is not the point. We are living in an age when technological (if not moral) progress means that we can both have our cake and eat it. If we can find alternatives to a system which relies solely on financial rewards to provide incentives when clearly so many artists, innovators and even hard-nosed businessmen are motivated by totally unrelated factors.

Recognition And Idealism

Returning to computer software, not shareware this time, but public domain, let us consider the case of the fractal generation program, Fractint. Currently this has reached version 15.1; (32) the on-line manual for this free program contains over a hundred pages of documentation. The original author, Bert Tyler, a graduate of America’s Cornell University, has been joined by many volunteers through the electronic mail network, including one from Australia; the project is still on-going.

In the introduction, Fractint is described as freeware; copyright is retained by the charmingly named Stone Soup Group. (33) The following points should also be noted: "Fractint may be freely copied and distributed but may not be sold...

“It must be clearly stated that Fractint does not belong to the vendor and is included as a free give-away... [Emphasis added]

“It must be a complete, unmodified release of Fractint, with documentation, unless other arrangements are made with the Stone Soup Group...

“Source code for Fractint is also freely available.”

But the most interesting comment is:

“Contribution policy: Don’t want money. Got money. Want admiration.”

The fact that such a complex piece of software, which has gone through 15+ releases is given away free, and that the author(s) want admiration rather than hard cash does rather suggest that there might be other ways of rewarding, and honouring, those artists whose creativity adds to the sum total of human understanding, wealth or just enjoyment. As I have already pointed out, what sort of alternative there could be to fiscal reward I have no idea, but surely there is someone out there who considers the possibility worth investigating?

Creativity And Idealism

Staying with software, there is an enormous amount of material in the public domain which is placed there rather than copyrighted, and for various reasons. For example, some programmers write programs for sheer enjoyment, while in some countries, any product developed by an academic institution must be placed in the public domain by law. (34) This latter is what might be termed statutory idealism, ie the state feels that anything created during the course of research or education which may be of benefit to the entire community, should be used to benefit the entire community.

This sort of thing (compulsory philanthropy) is usually a sore point with Libertarians, but it should not blind us to the fact that there exists a great deal of idealism in this field. (35) Thomas Hanlin (see previous footnote) is not an isolated example, and it is, pleasantly enough, something I have had personal experience of, mostly from sysops (bulletin board operators). Computers seem to bring out the best in people. Such a thing as idealism in art is of course, impossible to quantify, but the fact that it exists, and not just in the field of software development, cannot reasonably be disputed. An example on a grand scale is the free concert given by Italian opera king Luciano Pavarotti in London’s Hyde Park earlier this year. It may be that many artists don’t want to be loved, recognised or even acknowledged; they simply want to be of service to their fellow men.


The conclusion the current writer draws from all this is that the state should do all in its power to nurture creativity by all artists in whatever field they are engaged. And, that in order to provide them with such stimuli, the possibility of introducing rewards and incentives of an entirely different nature from the usual financial ones should be considered. In turn, this would lead to all artists receiving some recognition, if not acclaim, for their work, including those who, like the rock band Magnum have spent ten or more years “on the road”, but unlike them, have never achieved any financial success and therefore have never received any recognition, however deserving they may be.

Endnote: Copyright And Creativity

To what extent does copyright stifle creativity, and to what extent does it nurture it? A while ago, when the author was talking to LA Treasurer Brian Micklethwait, the latter commented that at this stage of their development, it was probably better for computers not to be standardised. He was referring here to the various operating systems, in particular, MS-DOS, Apple and Amiga formats. His reasoning being, presumably, that Microsoft, Apple, et al would all be striving to make their particular systems outshine those of their competitors.

An alternative view is taken (in the software field), by the Free Software Foundation who believe “...the wheel is being reinvented thousands of times, for no very good reason...” and that “true progress will only be achieved when the basic necessities of computing - at the software level - are freely available.” (36) Like most of the great issues of this and every age, there is probably no easy answer to this question. The best suggestion the current writer can offer is that while conflict doesn’t seem to do Nature any harm, (the ultimate conflict being evolution), overall, Man has achieved less by conflict than by cooperation.

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